High Court
Case Details
RSA 131/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
This appeal by the defendants, is directed against the judgment and decree dated 10th July, 2002 passed by the learned Civil Judge (Senior Division) No.3, Kamru p at Guwahati in Title Appeal No.26/2001, allowing the appeal preferred by the p laintiff/ respondent by setting aside the judgment and decree dated 13th Februar y, 2001 passed by the learned Civil Judge (Junior Division) No.5, Kamrup at Guwa hati in Title Suit No.225/1999, whereby and whereunder the plaintiff’s suit was dismissed. [2] The plaintiff filed the suit praying for mandatory injunction di recting the defendants to vacate the suit land; for delivery of khas-possession by ejecting the defendants therefrom; for permanent injunction and also the cost , apart from a decree for any other relief or reliefs the plaintiff is entitled to, contending inter alia that Bhebela Sheikh, the father of the defendant Nos.7 to 11 and brother of the defendant Nos.1 to 6, was the original owner of the la nd measuring 1 Bigha 9 Lechas, out of which he, on 18th June, 1974, sold 2 Katha s 9 Lechas of land to the plaintiff by a registered deed of sale (Exhibit-1) and delivered possession on 19th June, 1974. It has further been pleaded that purs uant to such sale and possession, the name of the plaintiff was also mutated in the revenue records on 7th January, 1989. The further pleaded case was that the defendants in the months of June and July, 1999 threatened the plaintiff with d ire consequences if he does not give up the possession and ultimately on the nig ht of 1st September, 1999, taking advantage of the absence of the plaintiff, for cibly occupied the suit land, morefully described in Schedule-A to the plaint, w hich necessitated filing of the suit. In the cause title of the suit, it has, h owever, been mentioned that the suit is for mandatory-cum-permanent injunction a nd also for declaration of right, title, interest apart from delivery of khas po ssession. The Court fee for declaration of right, title and interest has also b een paid. [3] The defendants, on receipt of the summons, entered appearance an d contested the suit by filing joint written statement denying the execution of the sale deed by Bhebela Sheikh, their predecessor-in-interest, and delivery of possession, as contended by the plaintiff. It has also been contended that Bheb ela Sheikh never executed any sale deed and the thumb impressions in the sale de ed are not of Bhebela Sheikh, which are in fact forged. [4] e following issues for determination:- (cid:28)1. Whether late Bhebela Sheikh had ever sold the suit land to the plaintiff by registered sale deed dated 18.6.74 No.6174? Based on the pleadings of the parties, the trial Court framed th 2. Whether the plaintiff has right, title and interest over the suit land? 3. Whether the suit is bared by limitation? 4. Whether the plaintiff ever possessed the suit land? 5. Whether the defendants have forcibly dispossessed the plaintiff from the suit land and are liable to be evicted therefrom? 6. Whether the plaintiff is entitled to the reliefs prayed for? (cid:29) [5] nd documentary, and cross-examined their respective witnesses. Both the parties have led their respective evidence, both oral a [6] The trial Court upon appreciation of the evidence has dismissed the suit of the plaintiff by holding that since the plaintiff has failed to exam ine any of the attesting witnesses of the sale deed (Exhibit-1), as required und er Section 68 of the Evidence Act, the plaintiff could not prove its due executi on. [7] The plaintiff being aggrieved, preferred the aforesaid appeal, w hich was allowed by the first appellate Court by holding that since the sale dee d is not required to be attested by any witness, under the law, the provision of Section 68 of the Evidence Act does not apply. It has further been held that t he plaintiff could prove due execution of Exhibit-1 sale deed, including the con tents thereof as well as the thumb impression of Bhebela Sheikh, apart from the plaintiff’s initial possession after such purchase. The first appellate Court ha s further held that though the defendants have set up the plea that the thumb im pression of Bhebela Sheikh was forged, the same, however, could not be substanti ated by the defendants. Hence, the present appeal. [8] ber, 2002, on the following 2(two) substantial questions of law:- (cid:28)I. Whether a registered Sale Deed Exhibit-1 can be said to be proved in absence of materials on record that the executant of Exhibit-1 put his mark or signatur The appeal was admitted for hearing, vide order dated 22nd Novem e on the deed after having known and understood its contests? II. Whether the learned Court below can declare right, title and interest of the plaintiff/Respondent over the suit land without any prayer or pleading to that effect in the plaint? (cid:29)
Legal Reasoning
[9] I have heard Mr. PP Das, learned counsel for the appellants/defe ndants and Mr. R Bordoloi, learned counsel appearing for the respondent/plaintif f. [10] Referring to the substantial questions of law formulated, it has been contended by Mr. Das, learned counsel for the appellants, that though init ial burden is on the plaintiff to prove the signatures or thumb impression of th e executant, the plaintiff having failed to do, the first appellate Court ought not to have decreed the suit of the plaintiff by setting aside the judgment and decree passed by the trial Court. It has also been submitted that it is evident from the relief claimed in the suit that the plaintiff never prayed for declara tion of right, title and interest and hence, the first appellate Court ought not to have declared the right, title and interest of the plaintiff, in the absence of any prayer to that effect in the plaint. [11] On the other hand, Mr. Bordoloi, learned counsel appearing for t he respondent/plaintiff, referring to the deposition of PW-7, the writer of the sale deed (Exhibit-1), has submitted that the thumb impressions of Bhebela Sheik h have been proved and though the defendants set up the plea of forgery, there i s no material particulars in the plaint to that effect and that apart, the defen dants could not discharge the burden of proof that the thumb impressions appeari ng in Exhibit-1 sale deed are not that of Bhebela Sheikh. The learned counsel f urther submits that it is evident from the cause title of the plaint that the pl aintiff’s suit was for declaration of right, title and interest, apart from inju nction and eviction, for which the plaintiff has also paid the Court fee. The le arned counsel further submits that reading of the pleadings in the plaint as a w hole reveals that the plaintiff has prayed for right, title and interest, for wh ich the issue was framed and the parties have led evidence. The learned counsel , therefore, submits that the substantial questions of law as framed on 22nd Nov ember, 2002 do not arise in the case in hand. [12] As noticed above, the trial Court dismissed the suit of the plai ntiff solely on the ground that the plaintiff did not examine any of the attesti ng witnesses to prove due execution of the sale deed (Exhibit-1), as required un der Section 68 of the Indian Evidence Act. The sale deed being not a document r equired to be attested by law, the provision of Section 68 of the Indian Evidenc e Act does not apply, as has rightly been held by the first appellate Court. It also appears from the evidence of PW-7, the writer of the sale deed (Exhibit-1) , that he has proved the thumb impressions of Bhebela Sheikh, who executed the s ale deed. During cross-examination, this witness has further stated that he has personally taken the thumb impressions of Bhebela Sheikh, who is known to him. That apart, the said sale deed is a registered instrument registered under the provisions of the Indian Registration Act. Bhebela Sheikh has also admitted its execution before the Registrar. Presumption has to be drawn about due execution , when sale deed is registered under the provision of the aforesaid Act, which p resumption, however, is rebuttable. Burden lies on the person, who challenges d ue execution of sale deed to prove the same, when the initial burden of due exec ution is discharged by the person claiming its due execution. As discussed above, the defendants set up the plea that the thum [13] b impressions of Bhebela Sheikh appearing in the sale deed (Exhibit-1) are forge d, meaning thereby that those are not the thumb impressions of Bhebela Sheikh. Though the plaintiff could discharge its burden of proving that the thumb impres sions appearing in Exhibit-1 sale deed are that of Bhebela Sheikh, the defendant s could not discharge their burden of proof that those are not the thumb impress ions of Bhebela Sheikh, though such burden is on the defendants as they set up t he plea of forgery. That apart, no material particulars are pleaded, relating to the forgery, in the written statement. [14] nd hence, the same is dismissed. That being the position, I do not find any merit in the appeal a [15] t. [16] The parties, however, are directed to bear their costs throughou The Registry is directed to send down the records.